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TCF guard petitions ALJ for reinstatement, back pay

A corrections officer who was acquitted by a jury of allowing an inmate to escape from the Territorial Correctional Facility has petitioned the Administrative Law Judge for reinstatement of his job, along with back pay, after his request to the Police Commissioner was denied.


Officer Rocky Tua was placed on annual leave in October 2012 by then Police Commissioner Tuaolo M. Fruean, after he was arrested and charged with aiding in and permitting the escape of a prisoner.


A year later on Oct. 11, 2013, a jury found Tua not guilty of the charges following a three-day trial.


The following day, Tua’s attorney Matailupevao Leupolu Jr., wrote to Police Commissioner William Haleck informing him that his client has been “exonerated” of the charges and requested an immediate order to return Tua to his job along with back pay dating back to the day he was placed on leave, as well as all employee benefits that are due him.


In his Oct. 18 response, Haleck acknowledged that Tua was found not guilty of the criminal charges, but pointed out “this does not negate our own Administrative actions that we are pursuing against him based on the findings of our own departmental internal investigation by which I will be recommending that … Mr. Tua be terminated … as a result of this investigation for ‘Below Job Standard Performance and Misconduct’,” per ASG personnel regulations.


In a memo dated Oct. 21, Haleck informed Tua of the outcome of the internal investigation and that a recommendation for his termination would be forwarded to the Human Resources Department director.


Haleck’s memo outlined what the Commissioner says is Below Job Standard Performance and Misconduct by Tua. For example, on July 19, 2012, Tua failed to maintain responsibility over a prison cell key when he gave it to inmate Val Ofoia who is serving prison time for burglary.


Haleck claims Tua instructed Ofoia to unlock the cell door for inmate Veli Tagaleo’o, who was then to report to Tua and this is a clear violation of the warden’s repeated instructions whereby all inmates must be locked in their cells from 6p.m. to 6a.m. except for those inmates assigned to kitchen duties at 5a.m.


Once Tagaleo’o — who is serving time for criminal negligent homicide — was out of his cell, Tua instructed the inmate to go to the nearby store to buy some beer and the inmate complied and left the TCF ground, according to Haleck, adding this is a clear violation of court orders, that this inmate is prohibited from any release except for a genuine medical emergency or prior court order.


According to the Commissioner, another corrections officer saw Tagaleo’o at the nearby store and when confronted, the inmate told the officer it was Tua who allowed him to go to the store.


Later that evening, Haleck claimed Tua allowed another inmate — Jason Te’i who was serving time for burglary — to leave the TCF compound to purchase beer which he did and brought back to Tua at the TCF.


Lastly, Haleck claims Tua lied to two police detectives about the chain of events that unfolded during the evening of July 19, who pointed out that Tua’s action clearly violates laws and regulations.


“It is my belief that your termination will not only promote efficiency in this office but is in the best interest of government services,” he wrote. Haleck gave Tua until 4p.m. on Oct. 24 to respond in writing to these findings and to the Commissioner’s recommendation for termination.


Tua was also informed he is to remain on annual leave and “you should remain off the work premises until further notification.”


Leupolu responded on Oct. 23 on behalf of his client, saying Tua “denies all allegations” cited in Haleck’s memo and his client has been exonerated from all such allegations by the jury because the jury didn’t believe Ofoia, Tagaleo’o and Te’I — “hence there is no basis to your letter and no cause to justify any termination.”


“You letter indicates an approach of a pay-back scheme to punish my client for something that he did not do,” Leupolu wrote. “I thought as Commissioner you do understand when a person has been found not guilty of all charges it means that person is not guilty.”


Additionally, “your letter is a disappointment to my client not only as an employee of your department but to the public as well. So much for the government's policy, ‘people first’. Especially people like my client who was accused of a serious crime then found not guilty. Wow!”


Leupolu informed Haleck his client was ready to file a claim with the ALJ for back wages, leave and employment benefits due to him since he was placed on annual leave last October.


On Nov. 7, Leupolu filed a petition with the ALJ saying that presently, the DHR director has not acted on the Commissioner’s recommendation for termination and the plaintiff may amend the petition to include termination if it does happen.


The petition also pointed out that Tua was found not guilty by a jury and therefore he was “exonerated from all the charges” in the High Court.